Hazim v. Garcia
| Decision Date | 21 April 2023 |
| Docket Number | Index No. 805318/2020,Motion Seq. Nos. 001,002 |
| Citation | 2023 NY Slip Op 31348 (U) |
| Parties | LISSETH HAZIM, AS ADMINISTRATRIX OF THE GOODS, CHATTELS, AND CREDITS OF BIBIANA MARTINEZ TAVAREZ, DECEASED, Plaintiff, v. JUAN CARLOS GARCIA, LONGKAT KESMAN THE NEW YORK AND PRESBYTERIAN HOSPITAL, COLUMBIA UNIVERSITY VAGELOS COLLEGE OF PHYSICIANS AND SURGEONS Defendant. |
| Court | New York Supreme Court |
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 38, 39, 57, 58, 59, 60, 61, 62, 69 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER
The following e-filed documents, listed by NYSCEF document number (Motion 002) 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51 52, 53, 54, 55, 56, 63, 64, 65, 66, 67, 68, 70 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, the motions for summary judgment of defendants Juan Carlos Garcia, M.D. (Motion Seq. No. 001), Longkat Kesmen, P.A., s/h/a Longkat Kesman, P.A., and The New York and Presbyterian Hospital and The Trustees of Columbia University in the City of New York, s/h/a Columbia University Vagelos College of Physicians and Surgeons (hereinafter "NYPH") (Motion Seq. No. 002) are denied.
This matter arises out of alleged medical malpractice rendered to the 49-year-old decedent during emergency room visits to NYPH on October 23, 2019, and October 25, 2019. It is claimed that decedent's death on October 27, 2019, was a result of the defendants' failure to timely diagnose and treat her for a subarachnoid hemorrhage ("SAH")[1], failure to order additional testing during her first ER presentation (e.g., a CT angiogram, lumbar puncture, MRA), and decedent's premature discharge from NYPH on October 24, 2019, which necessitated her return to the emergency department one day later. Defendants maintain that their care and treatment was within the appropriate standard of care, and that decedent did not suffer a SAH until hours after her second admission on October 25, 2019.
Bibiana Martinez Tavarez, age 49, presented to NYPH's emergency room at 6:49 p.m. on October 23, 2019, complaining of a headache for several hours, with a significant increase in pain at 4:00 p.m. that day,[2] accompanied by blurry vision. She was triaged within forty minutes of her arrival and was seen in the Rapid Medical Evaluation of the emergency department where she was assigned to defendant, P.A. Kesmen. The P.A. interviewed decedent at 8:10 p.m. and noted that her headache initially started in the back of the head and gradually radiated towards the front, becoming significantly more painful at 4:00 p.m. A physical examination was normal, decedent did not exhibit nystagmus during the neurological portion of the exam, and she was oriented to person, place, and time. The P.A.'s plan included a CT scan of the head to rule out SAH, Tylenol for pain, Zofran for nausea, and IV hydration.
The head CT scan without contrast was performed at 9:39 p.m. and revealed "no evidence of intracranial hemorrhage, mass effect or large acute infarct." Ms. Martinez Tavarez was given one dose of Tylenol (975 mg) at approximately 9:00 p.m. and a 30 mg IV drip of Ketorolac, also for pain, at 10:18 p.m. She reported that her pain had decreased from 9/10 to 0/10 and she was deemed stable for discharge by 1:00 a.m. on October 24, 2019. The diagnosis was migraine, and decedent was instructed to follow-up with her primary care physician and return to the ED if her headache worsened.
Twenty-four hours later, at 2:00 a.m. on October 25, 2019, Ms. Martinez Tavarez returned to the emergency department with complaints of extreme headache associated with two episodes of nausea and vomiting. This time she was seen by Emergency Medicine attending, Dr. Marissa Nadeau, whose physical exam included a comprehensive neurological evaluation which was non-focal. Dr. Nadeau's assessment was a thunderclap headache, and the plan was to rule out SAH. A repeat CT scan of the head was ordered. If the CT scan was negative, then the more invasive lumbar puncture would be performed.
The CT scan was performed at 4:22 a.m. and, compared to the prior study, revealed no interval changes or evidence of intracranial hemorrhage, mass effect or large acute infarct. Decedent underwent the lumbar puncture at 7:16 a.m. and the results were grossly negative.
At 8:45 a.m. on October 25, 2019, decedent suffered a seizure and went into cardiac arrest requiring five minutes of resuscitation, followed by another episode of pulseless electrical activity requiring ten minutes of resuscitation. At 10:00 a.m. another CT scan of the head revealed a diffuse SAH and cerebral edema. Neurology and neurosurgery were called STAT to be made aware. Decedent was transferred to the Neuro ICU for further management.
A brain death study was performed at 1:26 p.m. on October 26, 2019, after a further CT scan revealed the presence of a Grade IV SAH. At this point, Ms. Martinez Tavarez had fixed and dilated pupils and was not responsive to noxious or painful stimuli. She was declared brain dead, taken off life support, and passed away on October 27, 2019. An autopsy revealed vertebral artery dissection with aneurysm on the right measuring 0.9 by 0.8 by 0.6 cm.
Dr Garcia, the supervising attending physician of NYPH's emergency department, moves for summary judgment on the grounds that he never saw the decedent during her October 23, 2019 admission, and that his involvement was limited to cosigning P.A. Kesmen's note on October 24, 2019, after decedent's first discharge. Dr. Garcia maintains that his signature on a note authored by P.A. Kesmen merely reflects that he agreed with and approved the P.A.'s assessment and treatment plan.
In support of the motion, Dr. Garcia submits, inter alia, the affirmation of an emergency medicine physician, John P. Marshall, M.D. (see NYSCEF Doc. No. 29) who opines within a reasonable degree of medical certainty, that all care and treatment rendered during decedent's October 23, 2019 ED presentation to NYPH was within the accepted standards of emergency medicine, that no action or omission on the part of Dr. Garcia was a proximate cause of plaintiffs alleged injuries and, critically, that decedent "did not have a sentinel bleed or SAH during the October 23, 2019 ED presentation" (id., para. 31), as evidenced by the Endings of the cerebrospinal fluid extracted on the morning of October 25, 2019.
According to Dr. Marshall, (1) "good and accepted medical practice within the standard of care" requires that the "attending physician [Dr. Garcia] only be available, on site, for consultation, should [the P.A.] have any questions regarding the treatment plan" (id., para 19[3]); (2) there was no indication for P.A. Kesmen to consult Dr. Garcia and Dr. Garcia appropriately cosigned tire note, reflecting his agreement with and approval of the P.A.'s plan; (3) P.A. Kesmen appropriately ordered a CT scan of the head to rule out SAH; (4) the negative CT scan, performed within the six-hour window of onset of severe headache, indicated that no further intervention, inclusive of a lumbar puncture or additional testing, was necessary; (5) it was medically appropriate to give decedent 975 mg of Tylenol and a 30 mg injection of Ketorolac for pain; (6) decedent was appropriately monitored for over two hours prior to her discharge, and (7) there was no reason to admit decedent to the hospital, since her complaints of headache had been addressed, her condition had improved, and the only imaging study that was indicated yielded a negative result.
In support of their motion for summary judgment, P.A. Kesmen and NYPH submit, inter alia, the expert affirmations of Andrew Wackett. M.D. (emergency medicine; NYSCEF Doc. No. 42) and Nirit Weiss, M.D. (neurosurgeon; NYSCEF Doc. No. 43).
For his part, Dr. Wackett opines, within a reasonable degree of medical certainty, that these defendants did not depart from good and accepted medical practice, and that (1) the noncontrast CT scan of the head is the "appropriate first diagnostic tool" to rule out SAH when the onset of the headache is within 6 hours of the study; (2) the negative CT scan and decedent's report that her headache had improved obviated the need for a lumbar puncture, MRI or CT angiogram; (3) discharge by P.A. Kesmen was appropriate at 1:00 a.m. on October 24, 2019; (5) Dr. Nadeu's plan on October 25, 2019, to repeat the CT scan and compare it to the prior study before proceeding with the more invasive lumbar puncture, was appropriate; (6) the negative results of the lumbar puncture on October 25th indicate that had a lumbar puncture been performed on October 23rd, it too would have been negative; (7) decedent was appropriately managed in the ED when she suffered a seizure and went into cardiac arrest (i.e., NYPH staff called a code, commenced CPR, intubated decedent and administered epinephrine), and (8) when the repeat CT scan of the head at 10:00 a.m. revealed a diffuse SAH and cerebral edema, neurology was appropriately called and decedent was timely transferred to the Neurological ICU for further management. Dr. Wackett concludes that the care rendered to decedent in the ED was in accordance with good and accepted medical practice and did not proximately cause or substantially contribute to plaintiffs claimed injures.
Dr Weiss sets forth to a reasonable degree of medical certainty that the decedent (1) was appropriately evaluated and treated for her complaints of headaches at NYPH by its staff...
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